The Canadian Civil Liberties Association opposed parts of Bill C-68 in the attached fax sent to Warren Allmand on May 11, 1998. I understand that Mr. Borovoy asked if he might attend and speak to the committee but was refused. The Toronto Star picked this presentation up and covered it on Saturday May 13 but neither the Toronto Sun nor the Globe and Mail seemed to be aware of it until May 16 and then only mentioned it fleetingly. Canadian Civil Liberties Association 229 Yonge Street #403 Toronto, Ontario M5B 1N9 The Hon. Warren Allmand Chair Standing Committee on Justice and Legal Affairs House of Commons 6th Floor 180 Wellington Street Ottawa, Ontario K1A 0A6 Dear Sir: Re: Bill C-68 This is to express certain concerns of the Canadian Civil Liberties Association with respect to Bill C-68 on gun control. Since we have not yet been able to study the entire document in depth, we thought it would be helpful to focus, for now on those issues we have identified to date. On the substantive issue of regulating firearms, the Canadian Civil Liberties Association adopts a position of neutrality. In our view, the right to possess firearms does not qualify as one of the fundamental freedoms of the democratic system. Thus, whatever the positive or negative features of this bill may be, we do not believe that gun control legislation is inherently objectionable on civil liberties grounds. Some of the enforcem ent methods, however, clearly raise issues of civil liberties which we seek to address at this time. Entry, Inspection, Search, and Seizure Section 99(1) would give police officers a power of warrantless entry and inspection in places other than dwelling houses. All the officers would need to authorize their entry is "reasonable grounds" to believe that the premises in question contain certain categories of firearms. But, unlike most situations, the police officers would not, first, need to persuade an independent judi cial officer of their reasonable grounds; they would need to per suade only themselves. Such self-persuasion, of course, is not a reliable protector of the precious right to privacy. If the police generally need a judicial warrant in order to enter property in other situations involving the fruits or implements of crime, why should it be different with firearms? To whatever extent the police have persuasive grounds to believe there is any imminent peril to life or limb (as a result of firearms, hack saws, or even fists), no one could reasonably object to - indeed the current law might even allow - police entry without warrant. Emergency situations have long been entitled to special treat ment. But, in the absence of such urgency, there is no reason to treat the firearms situation differently from all other situa tions. Fortunately, the bill would require a judicial warrant to empower police entry into dwelling houses. But we are concerned also about the scope of the powers that the bill would give to the police on all premises they have legally entered. Once legally on such property, the bill says that the police may "examine any firearm and examine any other thing ... and take samples of it". Unlike other powers created by the bill, this one is not explicitly linked to the purposes of the bill. Nor is the provision that would empower police officers to "conduct any tests or analyses or take any measurement". On their face, these provisions would appear to create powers of search and seizure that extend beyond what is needed to enforce this bill. There is no justification for creating such infringements on the privacy of our citizens. (At this point, it is helpful to note that the current law permits the police to investigate matters additional to those that justified their initial entry if their suspicions are reasonably provoked by anything in plain view.) Section 100 requires the owner or person in charge of legally entered premises to "provide the police officer with any infor mation" which such police officer may reasonably require to en force the laws at issue. It does not take the exercise of considerable imagination to envision how this provision could effectively force people to incriminate themselves. Again, why should the firearms situation permit the creation of the kind of broad powers that are generally considered unacceptable in our democratic society? The right of silence is too important to be subject to infringement in this way. To the extent that the purpose for creating such powers is simply to enable the police to do what is suggested in these provisions: to "inspect" for compliance with firearms provisions, there is no reason why this could not be achieved by a significantly narrower set of powers. There might be an argument, for example, to allow a power of warrantless entry into the particular places (not including dwelling houses) where the gun owners in question have been authorized to store and handle their firearms. In any event - in the absence of emergencies or suspicious items in plain view the police officers' powers should terminate at the point that they can verify proper compliance with safety, storage, and han dling provisions. There may also be an argument for imposing such a regime upon those people who seek to bring potentially dangerous weapons of this kind into the community. As a quid pro quo for acquiring such special permission, the people concerned might acquire special obligations: to make their storage and handling premises available for reasonable inspection and to answer reasonable questions so that a regulatory regime can function. But it is one thing to impose a regime of this kind on those who volun tarily enter the kingdom of firearms owners; it is another thing entirely to impose such conditions on any member of the community whose premises (other than "authorized storage and handling de pots") might attract suspicion. Moreover, it's one thing to allow an inspection simply to verify whether the rules are being observed; it's another thing entirely to allow what might amount to a power of wholesale search and seizure. Consistent with the minimization of such intrusions, any duty to provide information should apply only to licensed firearms owners and their agents. Moreover, the failure of such licensed fire arms owners or their agents to answer reasonable questions should be enforceable, not with general sanctions such as jail, but with limited ones such as the suspension of license rights. In short, a condition of the license could include a duty to provide such information. Minimum Sentences If enacted, the bill would impose mandatory minimum jail sentences for a large number of offenses that are committed With firearms. In the opinion of the Canadian Civil Liberties Association, such an approach represents arbitrary adjudication. It means that, jail terms are determined according to an abstract formula rather than on the basis of concrete circumstances. This is a recipe for needless severity. A practical example will illustrate the kind of injustice that such provisions make possible. One of the offenses that is slat ed for a minimum sentence is discharging a firearm with the int ent to cause bodily harm. Those convicted of this offence would receive minimum four-year sentence. Last November, the Ontario Court of Appeal reduced - from 12 months to 6 months - a jail sentence imposed upon a man convicted of this offence. It is significant that every judge involved in this case believed that the circumstances warranted a penalty far less than the four years proposed by the bill. Why should it be assumed that, as between the judges who were aware of the particular circumstances and the authors of this bill who are not so aware, the latter's view of a just sentence ought to prevail? We believe a consensus would be easier to achieve if the authors of the bill were told that the convicted man in this case was a police officer Who fired at a fleeing suspect. According to the Appeal Court judge s, the officer "was acting in a situation of high stress that demanded split second decision-making". There is reason to believe that most Canadians - including the authors of this bill - would oppose a four-year jail sentence in the above circumstances. The case however, illustrates the problem with minimum sentences. There are often extenuating circumstances that simply cannot be adequately anticipated in advance. That is why mandatory minimum sentences are so foolishly dangerous. Rigid formulas should not be allowed in this way, to determine the fate Of our fellow citizens; wise judges should play that role. There are other factors that argue against the adoption of mini mum sentences. In a survey of judges conducted in the 1980s by the Canadian Sentencing Commission, ninety-one percent said mini mum penalties restricted their ability, on at least some occa sions, to give a just sentence. Ninety-five percent maintained that the existence of minimum sentences contributes, at least sometimes, to inappropriate plea bargains. Moreover, very few prison inmates and members of the public who were surveyed were able to name an offence that carried a minimum penalty. Minimum sentences could hardly serve as a deterrent if those affected are unaware of their very existence. In any event, all serious offenses in this country carry substan tial maximum penalties and there is no reason to believe that, in the main, the Canadian judiciary will be timid when the occasion requires toughness. A perusal of the published sentencing deci sions for the 1990s conveys the impression that heavy penalties are not infrequently imposed upon violent offenders. For Aggra vated assault, there have been sentences of 8 and 9 years, and high as 10 and 12 years for aggravated sexual assault. Small wonder, therefore, that the above report of the Canadian Sentencing Commission contains the following statement: All Canadian commissions that have addressed the role of mandatory minimum penalties (within the previous 35 years) have recommended that they be abolished. There is no reason to reject the accumulated wisdom of those our governments have trusted to study this issue. Indeed, there is good reason to be influenced by these experts. The Provision on minimum sentences should be deleted from the bill. Summary The key to acceptable legislation in situations involving po tential encroachments on our civil liberties is to seek the mini mum powers that are necessary in the circumstances. It is Obvi ous that the current bill extends Considerably further. The foregoing enforcement powers should be narrowed accordingly. In summary, the Canadian Civil Liberties Association requests the House of Commons Committee to amend Bill C-68 as follows: (1) Subject Possibly to situations involving premises - other than dwelling houses - that are authorized for the storage and handling of firearms, a judicial warrant should be required in the normal way to empower entry and inspection of all property. (2) Even in those situations (both dwellings and non-dwellings) involving premises that are authorized for the storage and handling of firearms, the power to inspect and any power of search or seizure incidental to it should be limited to ensuring compliance with the safety, storage, and handling provisions of the bill. (3) Subject possibly to licensed firearms owners and their agents, there should be no power, beyond what exists in the normal law, to require the provision of information. (4) The failure of such licensed firearms owners and their agents to provide the requisite information should be enforceable only by the suspension or cancellation of their license rights. (5) The provision for new minimum sentences should be deleted. If we can provide further assistance, in writing or through oral testimony we would be pleased to do so. Sincerely A. Alan Borovoy General Counsel Calvin Martin,QC,LLB 600 Church Street Toronto, Canada, M4Y 2E7 Tel 416 922-5854 Fax 416 922-5854 E-Mail dvc14@fox.nstn.ca